N e ws
A moment in ChAmBers:
chief justice marilyn Warren
Duty to justiCe
After 10 years in the
role, Chief Justice
Marilyn Warren
spoke to the LIJ about
the highlights and
challenges of leading
the Supreme Court.
By Carolyn Ford
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O
n 25 November, Marilyn Warren
reached 10 years as Chief Justice of
the Supreme Court of Victoria. In the
lead-up to this significant milestone, the LIJ
was given access to the workaday world of the
most senior judge in the state.
In an interview, accompanied here for the
first time by a series of candid photographs
taken over the course of one week, the Chief
Justice spoke frankly on a range of topics. She
commented on challenges facing the courts
and the legal profession, and nominated
highlights of her decade in the job – not least
admitting more than 10,000 lawyers over
the journey.
“One of the absolute joys of being Chief
Justice is presiding at admission ceremonies.
I must have presided over 10,000 admittances. I go into those ceremonies and the
atmosphere is just wonderful. The parents
are beaming. The lawyers moving admission
are happy and of course the new lawyers are
just so excited. That is a wonderful thing to
do, a real privilege,” Chief Justice Warren
said, speaking in her chambers.
The majority of those lawyers admitted by
Chief Justice Warren are women but statistics
reveal that within five years of graduating, a
large number of women have left the profession. Those who stay, research has found, are
not promoted to the upper echelons of the profession in anything like equitable numbers
with their male counterparts. From special
counsel to partner to the judiciary, women
are thin on the ground – and getting thinner
if you consider the shrinking percentage of
female judicial representation in the County
Court since 2011 – 46 per cent down to 31 per
cent in 2013.
Chief Justice Warren, the first woman
to lead the Supreme Court in its 150-year
history and who also holds the position
photos les o’rourke
News
on the BenCh: the chief justice sits on a civil appeal in the red court of the
court of Appeal with justice pamela tate and justice joseph santamaria
AnD genDer
of Lieutenant-Governor of Victoria, said
while the pace of change for women in the
legal profession hadn’t exactly been glacial,
she felt progress had plateaued which was
disappointing.
“I am very disappointed given the number
of women law graduates, then the number of
women being admitted to practice, how that
is not translating into more women appearing
in court in cases as barristers, women being
appointed as partners in the firms and otherwise having a more prominent role in the
legal profession.
“We have not only had a woman chief
justice, but a number of women appointed
in the courts. If I take the example of Justice
[Anne] Ferguson, who was a solicitor before
being appointed. She runs the Corporations
List. I ran that List 12-13 years ago and things
have not changed. It is still dominated by
men. She still sees the ‘sea of suits’ that I used
to see.
“We have had women presidents of the LIV
and other leaders and yet we are still not seeing women rising to partnership to the level
that we would expect.
“On top of that, we have had very disturbing information contained in the Human
Rights and Equal Opportunity Commission
report on the legal profession in Victoria. I
was very alarmed to read of the experiences
of some women . . . sexual harassment in particular but also deprivation of opportunity to
do the better work.
“Similar stories abound at the Victorian
Bar and I have seen it myself. We simply do
not see women represented in court the way
we ought given the levels of graduation and
admission. So there is a lot to do.”
Chief Justice Warren’s own theory about
why this disconnect has occurred relates, in
part, to the increasingly competitive legal
environment.
“It’s become more competitive, there are
more people with less work. So inevitably
there will be resistance to giving anything
up in favour of others for the sake of diversity. The second point is that the last are going
to be the hardest yards for women. We need
in the legal community to remain alert to the
fact that the achievement of diversity in the
profession and the courts is not finished yet.
There is a lot more to do. The moment we start
to say, well, that’s been done, and cease our
resilience, we will just go backwards.”
Judicial diversity, the Chief Justice said,
shouldn’t be a goal for its own sake. “It is about
ability. I would have reservations about an
individual being appointed to judicial office
solely for reasons of achieving diversity.
But sometimes an opportunity to achieve
diversity is overlooked by being unduly
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demanding of the standard of merit that has
to be achieved before an appointment will be
made. And so it is the old story that sometimes women have to be twice as good to be
regarded as an equal. That kind of mindset
has to be tackled and confronted. If ability
is there, then opportunity should be given.”
On a personal note, the Chief Justice
acknowledged she had suffered sex discrimination in her career. Not long out of Monash
law school, she applied for a job in the criminal law branch of the Crown Solicitor’s Office,
only to be told the Crown Solicitor didn’t think
women should be employed in that branch
as solicitors – or even typists – due to the
unpleasant nature of the work. It was 1976.
“I have suffered times of disillusionment
when I have been subject to awful discrimination on the ground of gender, told I couldn’t
have a job because I was a woman. That is
really confronting because I can’t change my
gender. When that happens it sets you back
but if you have the ambition of being a lawyer
and believe in yourself and the legal system,
well you just press on.”
Pressing on has seen the Chief Justice
embrace what she described in a speech given
before her current appointment as women’s
“duty to gender” – to accept all opportunities
for advancement, even if it meant making personal sacrifices.
“Inevitably you do [make personal sacrifices], but I don’t have any regrets. But in
terms of sacrifices, there are the demands of
the role and the impact on personal life, but
it has been very fulfilling for me personally
and there is more to be done.”
Reflecting on the past 10 years, which after
almost 40 years in the law she identifies as
a time of “immense pressure and change”,
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Chief Justice Warren said significant milestones had been reached. They included
implementation of Court Services Victoria,
(see New Independence for courts and VCAT
on page 13), change in the criminal jurisdiction, re-establishment of the court as a strong
common law jurisdiction with new areas
such as class actions and environmental law.
“Across the board we have seen an increase
in volume of work, and most significantly, we
have seen the repositioning of the court as a
very significant superior court in Australia.”
Myriad other achievements include:
reforms in the Court of Appeal, fewer delays
in criminal appeals, new measures to reduce
delays in civil appeals, establishment of the
commercial court which has been a great
CloCkwise From top leFt:
the chief justice talks with the Aide
to the Governor, brooke mitchell,
before the start of the 2013 Victorian
senior of the Year Awards
With staff, private secretary jan Funston
and legal and policy officer claire downey
the chief justice stands for the
National Anthem in the ballroom
at Government house for the 2013
Victorian senior of the Year Awards
considering the point,
during a staff meeting
Below: discussing a draft
judgment with associates Nicholas
elias (left) and tim jeffrie
photos les o’rourke
News
attractor of litigation to Victoria, as well as a
technology court, a costs court, an ADR facility, a mega-trial court, a change from master
to associate justice and refurbishment of the
Supreme Court building.
Alongside the court’s achievements have
been its challenges. These include adequate
resourcing and the built environment.
“We operate across up to six locations at
any given time and that is a challenge. On the
other hand we have the privilege of working
in one of Victoria’s most beautiful heritage
buildings. But beautiful and all as it is, it is
often dysfunctional and that places demands
on the court. And also, it causes concerns
about security and public safety.”
The future for the Supreme Court under
Chief Justice Warren’s stewardship will see
the advent of technology.
“One of the court’s highest priorities will be
to become a fully technologically based court
. . . that will enable litigators to conduct litigation in a 21st century environment.
“I have set my own personal deadline of
1 January 2016. It is my goal that we will
become a totally paper-free environment. In
other words, no trolleys and no folders in the
front door. It will all be e-trials and appeals
in every sense.”
A more immediate aim is embracing
social media, facilitating better communications with the wider community [see
“@scvsupremecourt” on page 14].
The court’s connection to the people of
Victoria is a theme running through its future
goals. Chief Justice Warren said she wanted
to improve community understanding of the
court through education and schools, and
also the experience of people who go to court.
“When people come into the court they
should have confidence they will receive justice, and that justice will be administered in
accordance with the law, but in a way that
they feel justice has been done. Going back
to the difficulties of this building, one of its
drawbacks is the way in which we treat victims of crime, witnesses in cases and people
who are compelled to come to court such as
jurors. The facilities are not satisfactory at all.
“It’s all about educating the community about the significance and value of the
Supreme Court, but with that, we as judges and
those involved in the court have to be accountable and transparent about what we do.
“At the end of the day what we need to do is
provide justice in a way that the community
has confidence in, and that it can know the rule
of law is protected and applied in this state.”
Future challenges for the legal profession
include adequate legal aid funding – not a
“Rolls Royce system” but of a satisfactory
standard-employment of more law graduates in a straitened profession, national legal
profession reform and lawyers maintaining
standards and expanding their skills.
Chief Justice Warren pointed out that
young lawyers needed to be nurtured and
mentored – not exploited. “They are not a
commodity, they are the future of the law and
they need to be looked after and nurtured. We
need to be very alert to that and look after
these young people.”
Underpinning all the court’s achievements, those won and those yet to come, is the
pursuit of excellence by its dynamic leader.
“Excellence leads to providing timely
justice, reduction in delays, providing jurisprudence of the highest possible quality.
The bottom line, however, is providing the
administration of justice at the highest level
we can.” l
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